Regulatory Activism?

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Few aspects of higher education took as many body blows from the Secretary of Education's Commission on the Future of Higher Education as did the accreditation system, which the panel's final report derided as having "significant shortcomings," including stifling innovation, paying short shrift to student outcomes, and being secretive. And that was after criticism from earlier drafts, including a proposal to completely overhaul the system, had been softened.

Now, as the U.S. Education Department begins to craft its plans for carrying out some of the commission's ideas, accreditation appears to have become a likely target for changes.

As expected, the department announced plans Friday to begin a process this fall and winter aimed at drafting rules to carry out changes made to the law by the passage of the Higher Education Reconciliation Act in February and, more surprisingly, to examine whether any proposals made by higher education commission can be put in place through federal regulation. Among other things, the Federal Register announcement specifically says that the negotiated rule making process, as it is called, might explore possible changes in the accreditation system.

Higher education lobbyists and college officials expressed surprise (and some dismay) at the idea that the Education Department seemed to be moving so aggressively to consider how the federal government might carry out recommendations from the higher education commission, given that the panel has not yet formally presented its ideas to Secretary Margaret Spellings and that so many of the panel's proposals are described in broad, often vague, detail. The commission's own leaders, they noted, have said they don't necessarily favor federal intervention to carry out their recommendations.

"My organization said the positive things it did about the report based on the report as a whole, and the most important part of it for us is its emphasis on access to higher education and lifelong learning," said David S. Baime, vice president for government relations at the American Association of Community Colleges. "So to pull out a section of the report and impose it upon us via the regulatory process certainly would violate the spirit of our statement of support. If the department is serious about applying the Spellings report ideas by the regulatory process, it would only be fair for them to also propose significant increases in need-based aid."

Other higher education officials said they feared that the department's plan to include the commission's proposals in its regulatory review heralded an attempt to skirt Congress to implement ideas that lawmakers might not favor, including a national database of student academic records.

Education Department officials said college officials should not read too much into the fact that they had included the commission's recommendations in the scope of the rule making process. The department is obligated to conduct negotiated rule making to carry out changes enacted in student aid and other programs as part of the budget reconciliation act, one department official said in an interview Friday, and it only made sense to use that process to solicit advice from college leaders and others on "all the possible topics of conversation."

"We're not binding ourselves to discussing anything," said the official, who spoke on condition of anonymity. "All we're doing is trying to solicit input and advice from [the higher education] community on the widest possible range of topics of relevance to the field. Nothing more should be read into it. This is in no way a backdoor approach."

Those words may not reassure college officials, many of whom have a mixed view at best of the final report of the Spellings commission and worry that the Bush administration may be much likelier to move aggressively on the aspects of the report that they dislike (tougher accountability measures, including significantly expanded public reporting of information about colleges' cost and students' academic performance) than on the proposals that they favor, such as significantly expanded financial aid. (Suspicions may be running particularly high at a time when the Bush administration is seen, in other policy areas like foreign policy, of having an expansive view of what is possible for the executive branch to do without changes in law.)

Technically, the process of negotiated rule making is designed to determine how best to carry out in detail changes mandated by the passage of a specific law. So the department is obligated to hold this particular rule making process, for example, because it has to decide exactly how to put in place the two new federal grant programs and changes in student loan programs that were enacted by the budget reconciliation law last February.

The department came up with temporary regulations for carrying out those changes this summer because of the short time frame between when the law was passed and this fall's deadline for making available the new grants, the Academic Competitiveness Grants and the National Science and Mathematics Access to Retain Talent Grant.

The negotiated rule making process the department announced Friday, which will involve four regional hearings between September and November, at the University of California at Berkeley, Loyola University of Chicago, a conference center in Orlando, and at the Education Department's Washington office, will focus heavily on changes mandated by the budget reconciliation law.

Two of the four committees that the department envisions creating to actually negotiate possible changes in federal rules relate to the budget law: one will focus on figuring out rules for the third and fourth years of the Academic Competitiveness and SMART Grants, and another will focus on changes mandated in the student loan programs by the budget law and, in the unlikely event lawmakers pass it before the rule making process begins, by the Higher Education Act renewal that is currently stalled in Congress.

The other two committees the department envisions have much broader (and less clearly focused) mandates, though. One would address what the department calls "other programmatic, institutional eligibility and general provisions issues," which could involve just about anything.

"We expect to conduct negotiated rulemaking on any modifications to the regulations governing the Title IV [student aid] programs generally that may be suggested as a result of the final report from the Secretary's Commission on the Future of Higher Education," the department's official notice says. "[T]he regulatory negotiation process could be used, to the extent possible, to address any recommendations for reducing regulatory burden or improving the administration of the Department's programs."

The emphasis on accreditation particularly nettles college lobbyists. One association official, who asked not to be identified, noted that unless Congress passes the Higher Education Act renewal, which in its current iterations contains some relatively minor changes in the law governing accreditors, "nothing has happened to force regulatory changes to accreditation."

The Spellings commission's report takes broad shots at the perceived ineffectiveness and dysfunction of the system of voluntary regional and national accreditation, but offers relatively few firm proposals for transforming it. So while there are no obvious changes in accreditation that might emerge from regulatory negotiations, the department could see itself as having broad latitude to impose new requirements on accreditors and, in turn, on colleges, some observers speculate.

Judith S. Eaton, president of the Council for Higher Education Accreditation, which both represents and formally recognizes accrediting groups, said the Education Department may have looked at the situation "and made a judgment that the regulatory path --- in contrast to or in addition to the more difficult path of changing the law -- is a viable and perhaps more expeditious means to achieve some of the modifications of accreditation called for" in the commission's draft report.

It is conceivable, she said, that a negotiated rule making committee on accreditation could decide to extend to regionally accredited and religious colleges and universities the same sorts of requirements on student learning outcomes that are now applied to vocational institutions, which are contained in the first of the 10 standards the Education Department uses to decide whether to recognize accrediting groups.

If so, this could mean that all institutional accreditors -- not just some -- would need to focus more intently on outcomes and institutional performance when addressing the first recognition standard." Eaton said. "This would affect all of their accredited institutions as well.This would advance the commission's goal with regard to outcomes and performance."

Eaton was careful to say she did not necessarily endorse having the Education Department take such an aggressive regulatory approach: "I am not commenting on whether this would be a good idea or not," she added.

The Education Department official interviewed Friday said that singling out accreditation for special mention did not mean that department officials necessarily eye changes in the much-discussed system. "It's just an issue people talk about," the official said. "If we don't mention it, we might be criticized by people saying, 'Oh, that's an issue [the Education Department doesn't] want to talk about.' "

Despite the concerns of college lobbyists, one expert on higher education policy making with a background in the executive branch said he believes the department's stated approach to rule making is reasonable.

Robert Shireman, who worked in the Clinton White House and now runs the Institute on College Access and Success, which advocates for students on student loan and other issues, said he, too, worries "about what the department might do on accreditation." But he said he did "not think the secretary is overstepping her bounds in looking aggressively at what her options might be. That is what leaders should do: look for reasonable ways to accomplish their objectives."

He noted that the Education Department during the Clinton presidency used regulation to do several things it wasn't sure it could persuade Congress to do, including changing the ground rules for its America Reads program and giving the direct lending program the ability to match discounted interest rates offered by lenders in the guaranteed loan program. Shireman's group, in fact, asked the department in May to begin a rule making process to rewrite its “inconsistent, confusing and contradictory” regulations for repaying loans. Department officials rejected the request in June, saying they are duty bound to review their rules “only if absolutely necessary and then in the most flexible, most equitable, and least burdensome way possible."

"It's the difference between asking the lawyers the neutral question, 'Can we do this?' (to which the lawyers are predisposed to answer conservatively) versus asking them, 'Can you please find a way for us to do this?' " Shireman said.